On April 16, the Supreme Court handed down one of the most anticipated
opinions of the past term. In Baze v. Rees, the Court addressed the
question of whether Kentucky’s administration of a three-drug lethal
injection "cocktail" for executions — a protocol currently
used by 30 states and the federal government — constitutes cruel and
unusual punishment under the Eighth Amendment. In a fractured 7-2 decision,
the Court upheld the procedure against the constitutional challenge.1

Given the widespread use of the lethal injection protocol
challenged in Baze, the significance of Baze’s
holding to the practice of capital punishment in the United States
is apparent. But Baze is significant for another reason, one
related only marginally to the central dispute in question. In his
opinion concurring in the Court’s judgment, Justice John Paul
Stevens wrote:

I have relied on my own experience in reaching the conclusion
that the imposition of the death penalty represents the pointless and
needless extinction of life with only marginal contributions to any
discernible social or public purposes. A penalty with such negligible
returns to the State is patently excessive and cruel and unusual punishment
violative of the Eighth Amendment.

Stevens’s opinion marks the first time in over
a decade that a sitting justice has declared that imposition of the
death penalty itself is unconstitutional.

Even to the most avid of Supreme Court observers, Stevens’ pronouncement
came as a surprise. It marked a startling about-face for a justice
who, over 30 years ago, cast one of the deciding votes in Gregg
v. Georgia, the 1976 case that ended the moratorium on death sentences
that the Court had established six years earlier in Furman v. Georgia.
In the years following Gregg, Stevens had on multiple occasions
voted to affirm death sentences, and had voted to deny innumerable
stays of execution. While recent comments — such as his statement,
in a 2005 speech to the American Bar Association, that "a substantial
number of death sentences have been imposed erroneously" — indicated
Stevens’ growing discomfort with capital punishment, his full
scale rejection of the death penalty’s constitutionality was
still hardly foreseeable. After all, he had long resisted the arguments
against the constitutionality of the death penalty set forth by Justice
Marshall and Justice Brennan during his tenure on the Court.

Stevens’ pronouncement was even more surprising
in light of the context in which it was made. Baze dealt solely
with one particular mechanism of carrying out the death penalty,
and the case’s outcome rested, in large part, on an evaluation
of the scientific and empirical evidence surrounding the administration
of the three-drug lethal injection protocol. It was certainly not an
obvious vehicle for exploring the theoretical rationales underlying
the constitutionality of the death penalty itself. That Stevens chose
this case — rather than, say, Kennedy v. Louisiana, a
case argued later in the same term that addressed the scope of
the death penalty — adds to the mystery surrounding the pronouncement.

But while Stevens’ change of heart regarding the
constitutionality of the death penalty may have been surprising, it
was certainly not unprecedented. Fourteen years ago, in a 1994 opinion
dissenting from the denial of certiorari in Callins v. Collins,
Justice Harry Blackmun wrote: "From this day forward, I no longer
shall tinker with the machinery of death. . . . It is virtually self-evident
to me now that no combination of procedural rules or substantive regulations
can ever save the death penalty from its inherent constitutional deficiencies."

The similarities between Blackmun’s and Stevens’ pronouncements
are striking. Like Stevens, Blackmun had voted to reinstate the death
penalty in Gregg v. Georgia, and had subsequently voted to affirm
death sentences on multiple occasions. Like Stevens, Blackmun made
his pronouncement in the context of an unexpected vehicle: in dissent
to an otherwise unexceptional denial of certiorari and stay of execution
(a denial of the sort that had become, for better or for worse, part
of the Court’s daily routine). And like Stevens, Blackmun had
long resisted the arguments of Marshall and Brennan against the constitutionality
of the death penalty
beforehis change of heart.

Perhaps most intriguing, both pronouncements came after
the justices had served on the Court for many years. At the time of Callins,
Blackmun was 86 years old and had served on the Court for 24 years;
he would retire less than six months later. Similarly, Stevens, at
the time of Baze, was 87 years old, and had served on the Court
for over 32 years. Both justices emphasized the significant effect
of their long experience on the Court on their respective decisions.
Blackmun wrote: "For more than 20 years I have endeavored — indeed,
I have struggled — along with a majority of this Court, to develop
procedural and substantive rules that would lend more than the mere
appearance of fairness to the death penalty endeavor." Similarly,
Stevens stated that "just as Justice White ultimately based his
conclusion in Furman on his extensive exposure to countless
cases for which death is the authorized penalty, I have relied on my
own experience in reaching [my] conclusion."

Exactly what role might experience have played in the
justices’ respective decisions? The answer may well rest on an
oft-overlooked aspect of the justices’ jobs. The Court receives
a last-minute application for a stay of execution for nearly every
execution in the United States; at times, the Court will receive one
or more of these applications each day. Each justice must vote on the
application prior to the execution, and the process often stretches
(literally) into the 11th hour and beyond — some West Coast executions,
for example, may be scheduled as late as 2 a.m., Eastern time, and
the papers are sometimes filed immediately before the time of execution.
While the vast majority of these applications are denied, the Court
will occasionally intervene where the issue raised by the capital defendant
is deemed appropriate, or potentially appropriate, for certiorari review.

During the course of a term each justice will likely
have reviewed scores of stay applications from capital defendants;
indeed, in many cases, the last thing the justice will do before going
to sleep at night is to vote on such an application. One could surmise
that for at least some of the justices, this process is incredibly
wearying on a mental and spiritual level. Justices must constantly
review capital cases that are often based on heinous and horrifying
criminal acts. At the same time, they likely encounter a number of
close cases where, despite a Court vote to deny a stay application,
they retain some doubt as to whether the Court’s decision to
allow the execution to proceed was correct.

At the time of their respective pronouncements, both
Blackmun and Stevens had reviewed hundreds, if not thousands, of these
stay applications. It may be that the justices, having seen so many
indeterminate shades of gray in this multitude of capital cases, simply
lost confidence in the judiciary’s ability to draw clear lines
as to where capital punishment is constitutionally permissible. Or
maybe, on a more visceral level, it was simply the weariness borne
from constant exposure to the horrors of capital crimes and the utter
finality of executions that led these justices to finally renounce
any desire to "tinker with the machinery of death." In any
event, it is clear that extensive exposure to capital cases during
their long tenures on the Court eventually led both justices to a different
perspective on the issue — a perspective that they may not have
grasped as relatively junior justices
in 1976.

For all of the similarities between the two pronouncements,
however, one significant difference stands out: the justices’ respective
choices of tone and language. Justice Blackmun’s opinion often
adopts a visceral and dramatic tone rarely seen in a Supreme Court
opinion; for instance, the opinion begins with a highly dramatized
description of Callins’s execution: "The witnesses, standing
a few feet away, will behold Callins, no longer a defendant, an appellant,
or a petitioner, but a man, strapped to a gurney, and seconds away
from extinction." Even more striking is the uniquely personal tone
that Blackmun takes throughout the opinion. Although grounded in legal
doctrine, the opinion ultimately reads less like a sober legal analysis
than a personal apologia penned by one seeking to justify his past
actions. Both of these tonal strands are encapsulated in the final
lines of the opinion, which combine a stinging rebuke of the Court
with a sobering reference to Blackmun’s own mortality: "I
may not live to see that day [when the Court deems the death penalty
unconstitutional], but I have faith that eventually it will arrive.
The path the Court has chosen lessens us all. I dissent."

Stevens’ opinion, on the other hand, is far more
modest in tone and content. Stevens lays out and explains, in systematic
fashion, three basic reasons for his conclusion: the erosion of the
traditional rationales underlying the death penalty; the absence of
sufficient procedures to protect the rights of capital defendants;
and the irrevocable nature of the penalty in the face of a strong possibility
for error. Unlike Blackmun, he does not seek to justify or explain
his prior voting record, nor does he rely on visceral imagery or dramatic
indictments of the Court’s actions. In fact, Stevens’ ultimate
conclusion is not even stated in his own words. Rather, he simply adopts
Justice White’s statement in Furman that "[a] penalty
with such negligible returns to the State is patently excessive and
cruel and unusual punishment violative of the Eighth Amendment." This
comparatively modest tone is further underscored by the fact that Justice
Stevens eventually concurs with the Baze Court’s
judgment on the basis of stare decisis alone.

One who is inclined to speculate could read volumes from
the very different tones taken by the two justices. At times, Blackmun’s
opinion reads like a personal confession from one finally releasing
himself from a long-held burden. That Blackmun announced his imminent
retirement from the Court a mere two months after Callins thus
should not have come as a shock; Callins was, on its face, a
self-conscious valedictory marking the end of a long judicial career.
By contrast, Stevens’ Baze opinion is, at its heart, a
straightforward legal analysis framed by what Stevens deemed to be
changed circumstances: the breakdown of traditional rationales supporting
the death penalty; the Court’s failure to erect sufficient procedural
protections for capital defendants; and the growing realization that
capital cases may be infected by significant error. There is no exorcising
of personal demons or bridge-burning excoriations of the Court in the
opinion — only a recognition, on Stevens’ part, that his
position on the death penalty must necessarily evolve. On this basis,
it may ultimately be inaccurate to read Stevens’ Baze opinion
as simply a latter-day recurrence of Blackmun’s pronouncement
in Callins. Stevens’ opinion is no confessionary coda
marking the end of a long career — it is the statement of one
who, even after 32 years on the Court, remains vitally engaged with
his duties as a justice, and recognizes that those duties may sometimes
require a reevaluation of one’s longest-held beliefs.

Endnote

1. Munger, Tolles & Olson filed an amicus brief
in support of the
petitioners in Baze on behalf of a group of clinical care providers
and clinical ethicists.

ABOUT THE AUTHORS
Bleich is a frequent contributor to the OSB Bulletin. The authors’ articles
on the Supreme Court appear regularly in The San Francisco Attorney
magazine, published bi-monthly by the Bar Association of San Francisco.

The authors all previously clerked at the U.S. Supreme Court. Jeff
Bleich is a litigator at Munger, Tolles & Olson in San Francisco
who clerked for the late Chief Justice William H. Rehnquist in the
1990 term and lectures on constitutional law at UC Berkeley School
of Law. He is the 2007-08 president of the State Bar of California.
Michelle Friedland is a litigator at Munger, Tolles & Olson in
San Francisco who clerked for Justice Sandra Day O’Connor in
the 2001 term and has taught federal jurisdiction at Stanford Law School.
Aimee Feinberg is a litigator at Munger, Tolles & Olson in San
Francisco who clerked for Justice Stephen Breyer in the 2004 term,
and David Han is a litigator at Munger, Tolles & Olson in San Francisco
who clerked for Justice Souter in the 2006 term. Dan Bress clerked
for Justice Scalia in the 2006 term..